Freed defendant blasts prosecutors in $150 million suit

Jabbar Collins, the jailhouse lawyer whose dogged investigation persuaded a federal judge to free him after he had served 15 years in prison for murder, sued New York City, Brooklyn prosecutors and city detectives for $150 million in damages yesterday.

Mr. Collins charged that prosecutors within the office of Brooklyn District Attorney Charles J. Hynes "had wrongfully withheld a key witness' recantation, had knowingly coerced and relied on false testimony and argument at trial, had knowingly suppressed exculpatory and impeachment evidence, and had acted affirmatively to cover up such misconduct for 15 years."

The civil rights complaint in Collins v. The City of New York, 11-civ-766, names as "the principal individual defendant" Michael F. Vecchione, a mainstay of Mr. Hynes' office who is now head of the rackets bureau and who led the 1995 prosecution that secured Mr. Collins' "unconstitutional conviction."

Read the complaint and exhibits.

But it also alleges that the city is liable for the unlawful actions of defendant police detectives and prosecutors who acted in conformity with "affirmative or de facto municipal policies, practices and customs" or because as their employer, the city showed "deliberate indifference" to their misdeeds. Rather than disciplining the employees, the complaint says, Mr. Hynes and other policy makers "praised and promoted them, thereby encouraging future constitutional violations to occur."

The district attorney's office reported to Eastern District Judge Dora Irizzary just weeks before a June 8, 2010, hearing that the prosecution had inadvertently failed to disclose to Mr. Collins that one of its key witnesses recanted prior to changing his mind and testifying at trial. But Mr. Hynes later that day staunchly defended Mr. Vecchione's conduct, declining to investigate how the case had been handled (NYLJ, June 9, 2010).

The 106-page complaint filed in the Eastern District by attorney Joel B. Rudin also seeks damages individually from six other Brooklyn assistant district attorneys, two detectives assigned to the district attorney's office and two NYPD detectives. It lists 10 state and federal causes of action, including malicious prosecution and deprivation, denial of due process and a fair trial, fraud and negligent representation and—against the city—negligent training, hiring and supervision.

The Brooklyn District Attorney's Office declined to comment.

The lawsuit, which has been assigned to Judge Frederic Block, faces substantial hurdles.

Prosecutors are absolutely immune from suit for any actions, even misconduct, taken in the course of their official function. In an effort to surmount that problem, the complaint contends that in state and federal post-conviction proceedings, Mr. Vecchione was no longer functioning as a prosecutor, but as a fact witness.

There also are limitations on city liability. To prevail, Mr. Collins must show that the city maintained what is tantamount to an "official" policy of violating civil rights.

Mr. Collins was arrested on Feb. 6, 1994, and charged with the robbery and murder of Abraham Pollack, a landlord and member of Brooklyn's Hasidic community, at a time when it was criticizing the police for laxity in investigating crimes against its members by blacks.

According to the complaint, police settled on Mr. Collins as their principal suspect after receiving a tip, despite the fact that others had been fingered for the crime. By the time his trial began about a year later, Mr. Vecchione allegedly was encountering problems with his three principal witnesses.

One had recanted, another was refusing to testify and a third was beyond the court's jurisdiction in Puerto Rico in violation of the terms of his probation, the complaint says. It charges that the police and prosecutors secretly coerced witnesses to give false and unreliable testimony.

Edwin Oliva initially told the police that he had overheard Mr. Collins plotting the killing of the landlord with another person, but then changed his story.

According to the complaint, Mr. Vecchione asked state prison officials to suspend Mr. Oliva's work release. The benefit was restored after Mr. Oliva implicated Mr. Collins at trial.

Two other witnesses—Angel Santos and Adrian Diaz—said that they had seen Mr. Collins running from the scene.

The complaint says that Mr. Vecchione flew to Puerto Rico and persuaded Mr. Diaz to "voluntarily" return for the trial. It adds that Mr. Vecchione twice wrote to the Division of Probation, saying he should not be incarcerated in the meantime for violating his probation.

The complaint asserts that Mr. Vecchione improperly confined a material witness, Mr. Santos, for two weeks before his trial testimony without producing him "forthwith" before a judge as is required by Criminal Procedure Law §620.

Mr. Santos, whose testimony had been taken as a courtesy in advance of the June 8 habeas hearing, told Judge Irizarry that, while he was being questioned at the district attorney's office, Mr. Vecchione threatened to hit him over the head with a coffee table and immediately send him to prison if he did not cooperate.

The complaint also accuses Mr. Vecchione of making false or misleading statements in affirmations to support requests for court orders allowing him to gain control over witnesses. It includes as an exhibit, a report from a handwriting expert concluding that "to a reasonable degree of certainty" three of the affirmations purportedly sworn to by Mr. Vecchione were in fact signed by someone else.

The complaint contends that the prosecution disclosed false or misleading information about the circumstances surrounding the three witnesses' testimony, depriving the defense of information that could have been used to challenge their statements that they testified voluntarily and without any personal gain.

Six assistant district attorneys are sued because they allegedly prepared affirmations in response to state Freedom of Information Law (FOIL) requests from Mr. Collins, which stated that the documents he was seeking were not in the office's files. Many of those documents were subsequently turned over to Mr. Collins as a result of discovery in his habeas corpus proceeding in Collins v. Ercole, 08 Civ. 1359, according to the complaint.

The six assistant district attorneys named in the complaint are Sholom Twersky, Anthony D'Angelo, Melanie Marmer, Morgan J. Dennehy, Virginia C. Modest and Jodi Mandel.

Judge Irizarry had insisted on holding a hearing even after the Brooklyn office had acknowledged withholding information that one of its witnesses temporarily recanted.

Based on that concession, the office initially agreed to vacate Mr. Collins sentence but insisted that he could be retried. On June 8, the day of the scheduled hearing, however, the office agreed to his unconditional release. That move aborted the hearing because the district attorney's office had conceded all the relief that Judge Irizarry could possibly grant.

Judge Irizzary nonetheless blasted the office in open court for its "shameful" handling of the case, saying Mr. Collins had presented "well documented evidence that prosecutors withheld evidence and misled the jury."

Assistant District Attorney Kevin Richardson, who was representing the office before Judge Irizzary, responded that the office "stands behind" Mr. Vecchione and its other attorneys and denies "each and everyone of the allegations against them."

Later that day, Mr. Hynes said he would not conduct an internal investigation, and that the only reason that the office had acceded to such broad relief was that the case was "unwinnable."

Previous misconduct?

Mr. Vecchione started his legal career after graduating from Hofstra University School of Law in 1973 as an assistant district attorney in Brooklyn for seven years before joining the police department.

In 1990, three years after Mr. Hynes became district attorney, Mr. Vecchione returned to the office. He has handled many of the office's biggest cases, including the successful prosecution of former Brooklyn Democratic Party chairman Clarence Norman, former Supreme Court Justice Gerald P. Garson, and the killers of social work graduate student Amy Watkins.

But Mr. Collins claims that Mr. Vecchione had previously crossed an ethical line with misconduct similar to that in his case.

The complaint says that in a 1996 triple murder, a key prosecution witness testified that he was a "volunteer" witness. But, the complaint stated, in a post-conviction proceeding a new lawyer discovered that after the defendant, Jeffrey Marshall, was convicted, Mr. Vecchione had written to the Division of Parole to request an early release for the witness.

In a subsequent habeas corpus proceeding, Marshall v. Grenier, 98 Civ. 1606, Eastern District Judge Edward R. Korman required Mr. Vecchione to testify. At the hearing, the Collins complaint says, Mr. Vecchione admitted that he had falsely stated in an affirmation that he had not known about a cooperating witness' pending rape charge and the office agreed to reduce Mr. Marshall's 25-year sentence to time served, the complaint stated.

Mr. Vecchione declined to comment.

Mr. Rudin also sought to demonstrate that prosecutorial misconduct has been pervasive since Mr. Hynes became district attorney in 1990. He attached a list of 56 cases in which he said that judges have found that Brooklyn prosecutors failed to turn over required exculpatory material to the defense or otherwise engaged in misleading tactics. The complaint also asserts that the office has never disciplined a prosecutor for misconduct.

(Published by New York Law Journal - February 17, 2011)